AGYEI VRS FRIMPOMAA & 2 OTHERS (A9/13/17) [2024] GHADC 261 (30 January 2024)

IN THE DISTRICT COURT ‘B’, SUNYANI HELD ON TUESDAY THE 30TH DAY OF JANUARY, 2024 BEFORE HIS WORSHIP ERIC DANING ESQ DISTRICT MAGISTRATE SUIT NO. A9/13/17 PRINCE KWAME AGYEI PER HIS LAWFUL ATTORNEY VIDA AGYEI………………….. PLAINTIFF VRS 1. PATIENCE FRIMPOMAA 2. GEORGINA AMOAKO 3. AUGUSTINA ANTWIWAA …………………………. DEFENDANTS JUDGMENT Plaintiff in his amended reliefs seeks from the defendant the following reliefs: (a) Declaration of title to all that building plot numbered 168 Block ‘B’ Sector 21, Airport Residential Area, Sunyani as a legally acquired property of the plaintiff. (b) Recovery of possession of plot numbered 168 Block ‘B’ Sector 21, Airport Residential Area, Sunyani which the defendants have trespassed onto. (c) General damages for trespass (d) An order of perpetual injunction to restrain the defendants, their agents, labourers, workmen, etc. from laying adverse claim to the disputed plot or any part thereof. The facts given rise to the instant case are that the plaintiff in this case somewhere around September 2013 he needed a piece of land to put up a building hence he applied to the Lands Commission which later allocated plot numbered 168 Block ‘B’ Sector 21, Airport Residential Area, Sunyani to the plaintiff upon payment of the appropriate fees. Plaintiff after the allocation of the plot to him attempted possessing the disputed plot by dumping two trips of sand on the plot but met the resistance from the 1st defendant who scattered one trip out of the 1 two trips of sand deposited by plaintiff on the land. The 2nd and 3rd defendants also upon seeing the attempts by plaintiff to develop the plot confronted plaintiff claiming that, the disputed plot was their family land and so would not allow the plaintiff to develop the plot. It is the plaintiff’s case that, he legally acquired the disputed plot from the Lands Commission, Sunyani but the 2nd and 3rd defendants maintain that the plot in disputed belonged to their family called the Kyidom family of Odumase No. 2 which is some time referred to as AWUAH ODUMASE. The 2nd and 3rd defendants are claiming ownership of the disputed plot as the original owners of the land which ownership dates back to over 100 years with their ancestors having variously worked on the land. On the whole, the issues for determination by the court are: (i) Whether or not he disputed plot was/is affected by EI 46 that is Executive Instrument No. 46. (ii) Whether or not the land belongs to the Kyidom family of Odumase No. 2 also known as AWUAH ODUMASE. (iii) Whether or not the Lands Commission Sunyani could validly grant plot no. 168 Block ‘B’ Sector 21, Airport Residential Area, Sunyani and (iv) Whether or not plaintiff is entitled to his claims. On the first issue, whether or not the disputed plot, plot no. 168 Block ‘B’, Sector 21 Airport Residential Area, Sunyani is and was affected by Executive Instrument No. 46 [EI 46]. Articles 257 and 258 of the Constitution, 1992 provides as follows:- “Article 257 (1) (2) provides “All public lands in Ghana shall be vested in the president on behalf of an in trust for , the people of Ghana. (2) For the purposes of this article and subject to clause (3) of this article “ public lands” includes any land which immediately before the coming into force of this constitution, was vested in the Government of Ghana on behalf of, and in trust for, the people of Ghana for the public service of Ghana, and any other land acquired in the public interest for the purposes of the Government of Ghana before, on or after that date. By this provision of the constitution any land affected by an instrument converting otherwise a 2 community, stool or family land by either compulsory acquisition or by any other means would be vested in the Government in trust for the people of Ghana. Executive Instrument No. 46 of 1961 declared various stool lands in Ghana in the Government of Ghana in trust for either the people of Ghana or in particular the subjects of a particular stool. Among the stool lands that were vested in the president; by the coming into force Stool Lands Instrument, 1961 [EI.46] provides that, the stool lands specified in the schedule hereto are hereby declared to be vested in the president. The SCHEDULE provides among others as follows: A- All stool lands within the area of jurisdiction of the Brong Ahafo South Local Council. B- All such stool lands within the area of jurisdiction of the Brong Ahafo Central Local Council which are situated within the boundaries of the erstwhile Sunyani Areas Local Council. C- All stool lands within the area of jurisdiction of the Sunyani Urban Council. D- All such stool lands within the area of jurisdiction of Brong Ahafo North Local Council which are situated within the boundaries of the erstwhile Tano/Subin and Tain Local Councils; E- All such stool lands within the area of jurisdiction of the Brong Ahafo Central Local Council which are situated within the boundaries of the Asukese Forest Reserve, ……………the content of EI 46 partly capture some stool lands in the Brong Ahafo Region and particularly Sunyani though the various stools were not named. The fact remains that all such stool lands vested in the president are managed by the Lands Commission of Ghana. Article 258 (1) (a) of the Constitution [1992] states “There shall be established a Lands Commission which shall, in ordination with the relevant public agencies and governmental bodies on behalf of government, manage public lands any land vested in the president by this constitution or by any other law or any lands vested in the commission:’’ The management of the stool lands vested in the President by virtue of EI 46 of 1961 in the 3 Brong Ahafo Region particularly the Sunyani stool lands is therefore in line with the mandate of the Lands Commission which is represented at all the Regions of Ghana. Article 260 of the 1992 Constitution creates the Regional Lands Commission and so Brong- Ahafo Regional lands Commission has therefore been in charge of the management of all such stool lands vested in the president in trust for the people of Ghana particularly the subjects of the stool lands affected. In the instant case evidence has so far shows that, the disputed plots fall within the lands which management vested in the Lands Commission of Ghana. In her evidence in chief, Vida Agyei the Lawful Attorney of the plaintiff told the court that in or around September, 2013 the plaintiff applied to the Lands Commission for a piece of land to put up a building. The Lands Commission upon receipt of the application invited the plaintiff to inspection and selection after which the plaintiff picked plot numbered 168 Block ‘B’ Sector 21 Airport Residential Area, Sunyani and caused pillars to be erected by the Lands Commission on the plot. The Lands Commission allocated the disputed plot to the plaintiff who later made all the statutory payments to the Lands Commission for which a receipt and a site plan were issued to him. The receipt and the site plan were tendered into evidence and marked as exhibits VA2 series without objection. Exhibit VA2 series include official receipts issued by the Lands Commission in respect of fees paid for administrative fees charges, inspection fee and processing fees in respect of plot No. 168 Block ‘B’ Sector 21, Airport Residential Area. By reason of this act by the Lands Commission being the constitutional body in charge of managing public land and stool lands vested in the president and the Lands Commission having performed it constitutionally mandated function by allocating plot No. 168 Block ‘B’ Sector 21, Airport Residential Area Sunyani to the plaintiff, it passes as an official duty performed by a public official. The receipts in exhibit VA2 having been issued and signed for the executive secretary of the lands commission is deemed and presumed to be regular until it is proven otherwise. Section 126 of the Evidence Act 1975 [NRCD 323] makes an official record or writing regular and admissible and is capable of being relied upon. It is the defendants’ case that at least from the evidence of Augustina 4 Antwiwaa, 3rd defendant that the plot in dispute forms part of a vast stretch of land belonging to her maternal family being a member of the Kyidom family of Odumase No. 2. It is also the position of the 3rd defendant who spoke for herself and on behalf of the 2nd defendant that the lands commission has no land and therefore the disputed land was demarcated by the lands commission without the consent of her family and that, the lands commission has no land so as to give any part thereof to the plaintiff. The 3rd defendant, Augustina Antwiwaa who in her evidence in chief told the court that the High Court appointed Nana Obiri Boahen as a mediator in matter that was pending at the High Court and by the work of the mediator that case was settled out of which the Kyidom family which defendants belong shared it share of the plots among its members including 3rd defendant’s mother and her children, told the court during cross examination on 16/3/2020 that, she did not know who the mediator in that High Court case which resulted in the settlement that gave the plots to her mother and children was or is. That is to say that the 3rd defendant who in her evidence in chief mentioned Nana Obiri Boahen as the mediator tuned to say in an answer during cross examination that she did not know who the mediator was. The 3rd defendant who spoke for herself and on behalf of the 2nd defendant told the court in her evidence as follows: In paragraph 5) “ That I am a member of the Kydom family of Odumase No.2” paragraph 6) “on 30th July 2009 Baffour Gyau and Ben Amoah both family members took action against Mr. Adu Mensah of Newmont and the Regional Lands Commission; suit No. C198/09”. Pragraph 7) “Later, Nana Kwame Tabiri (Abakomahene) Nana Kofi Mensah and Ben Amoah also took against Nana Yaa Tabuaa alias Araba Ocran and Opanin Appau Bediako. The suit under reference is titled: NANA KWAME TABIRI AND OTHERS VRS. NANA YAA TABUAA AND ANOTHER (SUIT NO. C10/04/2012) PARAGRAPH 81 “In course of the pendency of the suit His Lordship Justice Ofosu Quartey appointed NANA OBORI BOAHEN; our present counsel to act as a mediator”. 5 However, the 3rd Defendant contradicted her won testimony by stating in an answer that, she did not know the said mediator. During the cross examination of 3rd defendant on 16/03/2020 the following took place; Q: Do you know the person who mediated the settlement at the High Court. A: I know only the lawyers who were in the case. Q: So, you don’t know the mediator. A: yes, I don’t know the mediator. The 3rd defendant by this contradiction does appear not to know so much about the matter which was eventually settled at the High Court. By the instrumentality of Nana Obiri Boahen who is also a witness for defendants in this case the 3rd defendant tendered in evidence exhibits ‘1, and 2’. Exhibit 1 is a letter from Lands Commission dated 21/3/14 and exhibit 2 is consent judgment. On exhibit 1, a letter from the lands commission dated 21/3/2014 titled; NANA KWAME TABIRI AND OTHERS VRS. NANA YAA TABUAA AND ANOTHER SUIT NO. C1/79/2013, has its content as follows: “Your letter dated 12th March, 2014 in respect of the above subject matter refers. The commission would like to inform you that it does not take instructions from Nana Yaa Tabuaa in the execution of his mandate. Please be informed that, the land in dispute is vested in the president by virtue of EI 46 of 1961 and managed by the commission”. Article 258 of 1992 Constitution and section 5, of Lands Commission Act 2008 [Act 767]. The commission still maintains our allocation done in respect of the plots situate and being at Airport Residential area. This letter was signed by one Agyei Boateng George- H/PVLMD of the Lands Commission addressed to Nana Obiri Boahen & Associates and a copy of the president of AWUAH ODUMASE TRADITIONAL COUNCIL, AWUAH DUMASI. There is nothing on record in evidence that this letter written by the lands commission has been challenged nor has it been officially contested. The letter made reference to the disputed land and stated that the land in dispute is vested in the president by virtue of EI 46 of 1961 and managed by the commission (Article 258 of 1992 constitution and by section 5 of Lands Commission Act 2008 [Act 767]. This letter which is an official 6 letter is still in force and has not been challenged by the defendants who tendered it in evidence. Another exhibit tendered by the 3rd defendant is exhibit ‘2’ which captures the terms of settlement based on which suit no. C1/79/2013 was struck out by the High Court presided over by Justice Osei Tutu Monday 4th November, 2013. In the settlement among the plots allocated to the plaintiffs in that case being Nana Kwame Tabiri (Abakomahene) of Kyidom Division and Abusuapanin of Kyidom family and 2 others is plot No. 168 as captured in the terms of settlement. In that case which was settled based on which suit No. C1/79/2013 was struck out, plot No. 168, was settled in favour of the plaintiffs in that case and not the defendants, NANA YAA TABUAA AND ANOTHER. During cross examination Philip Oteng DW1, in this case the following took place: Q: In your evidence in chief you made mention of Nana Yaa Tabuaa @ Nana Araba. A: That is correct. Q: And you claim that the disputed plot is the property of 2nd and 3rd defendants. A: yes, my Lord. Q: Is it your case that the 2nd and 3rd defendants title to the disputed plot is through Nana Tabuaa. A: Yes. Q: And this belief you have is because some terms of settlement filed at the High Court in a suit that came before the court. A: Yes Q: The terms of settlement which had been filed in this matter and marked exhibit ‘2’, did not settle the disputed plot no. 168 block B sector 21 Airport Residential Area in favour of Nana Tabuaa. A: After the settlement the portion belonging to our mother is what was given to us. Q: On exhibit ‘2’, the paragraph ‘2’ stated the plot Number 168 in favour of plaintiffs and not Nana Tabuaa the person who you claim the 2nd and 3rd defendants own the disputed plot. 7 A: That is correct Clearly if the 2nd and 3rd defendants claim their title or ownership to plot no. 168 block B sector 21 Airport Residential Area by virtue of the settlement in suit No. C1/79/2013, then their claim is misplaced because in that case that plot No. 168 was not settled in favour of the said Nana Yaa Tabuaa who was a defendant in that case. In all this the issue of the Lands Commission being vested with the management of the land part of which is plot No. 168 has not been impeached and so in yet another revelation from the evidence of Augustina Antwiwaa 3rd defendant, she told the court that it was the Lands Commission that demarcated the vast stretch of land into building plot one of such plots is the subject matter of the instant suit. Again, during cross examination of the 3rd defendant on 16/03/2020 the follow took place. Q: It was the lands commission that demarcated the vast stretch of land into building plots one of such plots is the subject matter of the instant suit. A: That is correct. Q. And the lands commission did the demarcation by virtue of the fact that the commission is the manager and the Administrator of the vast stretch of land. A: That is correct. Q: It was the lands commission that granted interest in the disputed plot to the plaintiff herein. A: I don’t know. Now this is the evidence of a defendant who has stated in her evidence in chief that the Land Commission has no land so as to give any part thereof to the plaintiff as she stated in paragraph 14 of her witness statement which became her evidence in chief. Again, it was stated in paragraph 18, of the 3rd defendant’s witness statement which is her evidence in chief that, “As far as our family is concerned nobody engaged the services of the Lands Commission to make any demarcation for our family”. The inconsistencies and various contradictions in the 3rd defendant’s own evidence makes her evidence unreliable as much as it creates doubts and is thus conflicting on the defendant’s case and rather support the fact that the Lands Commission was properly seized with the mandate to manage and administer the 8 land out of which plot no. 168 block B sector 21 Airport Residential Area, Sunyani was demarcated. Another piece of evidence which support the position that the Lands Commission was clothed with the power to manage the disputed plot is the evidence of D.K Brefo, PW@ who testified on 17/5/2019. In his evidence in chief D.K Berefo DW2, told the court that, the disputed plot is plot no. 168 block B, Sector 21 Sunyani Airport Residential Area, that the land is a stool land vested in the president and that the plaintiff had been proposed for the grant of a lease over plot no. 168 and that plaintiff had accepted the proposal made to him for which he made initial statutory payments and the lease is under preparation but for a misunderstanding that has arisen as to who should own the plot in dispute. The emphasis here is that the disputed plot is a stool land vested in the president. Again, in the evidence of Nana Obiri Boahen a private legal practitioner who testified as the 4th witness for defendants he told the court that 4.“somewhere in the year 2013, I made an intervention in the case of NANA KWAME TABIRI AND OTHERS VRS. NANA YAA TABUAA AND ANOTHER SUIT NO. C1/79/2013. 5. I wrote a letter to the lands commission for the commission to furnish me and the court the total number of plots demarcated by the commission within 14 days. 6. upon the realization that lands commission was not cooperating and having regard to the fact that, their nefarious and fraudulent activities had all come to my knowledge they failed or refused to cooperate with one 7. I eventually prepared the terms of settlement which was duly signed by all the litigating parties, their lawyers and witnesses. 8. The terms of settlement was filed on 23rd day of October, 2013 and the court presided over by Justice Osei Tutu adopted same as consent judgment. 9. I did not receive any letter from the lands commission. However, during cross examination of Nana Obiri Boahen-DW4, by the lawyer for the plaintiff exhibits OB1, OB2, OB3 and OB4 were all tendered through Nana Obiri Boahen DW4 in evidence. Exhibit OB1; it is a letter dated 17/7/2013 written by Nana Obiri Boahen-DW4 in his capacity as a mediator in a suit titled; NANA KWAME TABIRI & ANOTHER VRS. NANA 9 YAA TABUAA & ANOTHER. The letter reads – ‘AIRPORT RESIDENTIAL AREA PLOTS REFERS Respectfully, as directed by the trial Judge; my interaction with the parties and their layers has yielded a positive results. The litigating parties and their lawyers have agreed as follows: 1) The lands commission and the paramount chief of AUWA ODUMASI shall take Thirty plots. 2) The lands commission, upon the receipt of this letter furnishes me MEDIATOR with the plots numbers of the thirty building pots which shall not be concentrated at one particular area The plaintiffs and the defendants shall distribute among themselves/their immediate family members the remaining building plots. This letter, exhibit OB1 was signed by Nana Obiri Boahen DW4 and addressed to the Regional Lands Officer, Lands Commission, Sunyani - Brong Ahafo Region. Again, in exhibit OB2, NANA OBIRI BOAHEN wrote to Lands Commission demanding from the lands commission to furnish him the plot numbers of the thirty building plots due or meant for the lands commission and the paramount chief of AWUA ODUMASI NO. 2. In response to these two letters the Lands Commission in a letter dated 19/7/2013 wrote “your letter dated 17 July, 2013 in respect of NANA KWAME TABIRI & ANOTHER VRS. NANA YAA TABUAA & ANOTHER; AIRPORT RESIDENTIAL PLOTS REFERS; the lands commission captured all the plot numbers allocated to the litigating parties, their immediate family and farmers on the land but which plot numbers did not include plot No. 168 as can be found on exhibit OB3. In yet another letter written by the Lands Commission to Nana Obiri Boahen dated 19/9/2013 titled RE: NANA TABIRI & ANOTHER VRS NANA YAA TABUAA & ANOTHER which letter is in evidence as exhibit OB4 the lands commission wrote “your letter dated 29th July 2013 refers the plot numbers retained by the Lands Commission are: 111, 112, 113, 114, 115, 10 116, 117, 118,148,149,100, 101, 102 153, 154, 155, 156, 157, 158, 160, 161, 162, 164, 165, 166, 168, 185, 186, 191. Clearly, from the above the Lands Commission cannot be said to have no locus in the management of the disputed plot and if it were not so then on what basis did Nana Obiri Boahen DW4 a private legal practitioner who was appointed a mediator in a suit involving the disputed plot write to the lands commission to furnish him with the plots that the commission retained as well as the plot numbers for the litigating parties and that of the paramount chief of Awua Odumasi. Again, on what basis did exhibit OB1 by the content informed the lands commission that the commission and the paramount chief of Awua Odumasi shall take thirty building plots? The evidence in my opinion is over whelming that the lands commission by virtue of EI 46 of 1961 is the proper and lawful body to manage the disputed plot and so any allocation made by it could not be faulted because the stool land vested in the president on the second issue, whether or not the land belongs to the Kyidom family of Odumase No. 2 also known as Awua Odumasi is by the finding that the disputed land by virtue of EI 46 of 1961 is part of the stool land vested in the president. The AWUA ODUMASI family cannot be said to be the owners of the same land. If anything at all it was acquired by the government of Ghana in 1961 by EI 46 of 196. On the third issue, it is quite clear that the lands commission could validly grant plot No. 168 Block B, Sector 21 Airport Residential Area, Sunyani. On the basis of all the forgoing the fourth issue of whether or not the plaintiff is entitled to his claim is resolved that, plaintiff indeed is entitled to his claim under the circumstance. From the totality of the evidence adduced by the parties before the court. It is clear that plot No. 168 block B Sector 21 Airport Residential Area, Sunyani. The subject matter of the suit is affected by the Executive Instrument EI 46 of 1961 vesting the land at the areas including plot No. 168 in the trust of the subject stool. That being the case the proper institution to deal with the said lands particularly plot No. 168 Block B, Sector 21, Airport Residential Area Sunyani is the Lands Commission to the plaintiff was lawful and proper making the plaintiff the owner of plot no. 168 Block B Sector 21, Airport Residential Area, Sunyani. Plaintiff has successfully 11 proven his title in the subject of the suit and so judgment is entered for plaintiff. Cost of GH¢10,000 awarded. - SGD. H/W ERIC DANING ESQ [MAGISTRATE] 12